The author of this piece wishes to remain anonymous, due to political restrictions on their activity, and is involved in local government regulation.

It will be interesting to see if the horse meat scandal brings any of the supermarkets to court. Selling something that is not what you say it is, is an offence unless you have a defence of ‘due diligence’. As a local government regulator, I doubt very much that any of the supermarkets will be brought before the courts. Why? Because successive governments have made the enforcement of regulations on big business has been made so difficult in recent years.

The Regulatory Enforcement and Sanctions Act 2008 was passed under Labour. It enables a business to partner with a local authority and form a ‘Primary Authority’, whose role is to ensure consistent enforcement of regulations by all of the 450 different local authorities – very sensible you may think. The Act says that before any enforcement action could be taken against a ‘partnered business’ then the local authority wishing to take the action had to get the permission of the ‘Primary Authority’. In setting up and running a ‘Primary Authority’ costs are incurred. These costs can be charged to the business. This means that a Primary Authority may have a member of staff whose entire salary is paid for by a business. As an example the Primary Authority for Sainsbury’s is Cherwell District Council – if a local authority wants to serve a notice on Sainsbury’s then they need the permission of Cherwell District Council and the officer responsible may have their salary paid by Sainsbury’s. Cherwell District Council can stop the notice.

Similarly, if a local authority wants to prosecute Sainsbury’s then they need the permission of the officer at Cherwell District Council – whose salary is paid for by Sainsbury’s. Sainsbury’s can at any time withdraw from the relationship with the Council, which would possibly result in the officer being made redundant – it is not in the interests of the officer for Sainsbury’s to be upset at any enforcement action being taken. It is in the interests of the officer to defend Sainsbury’s and to prevent any enforcement action being taken.

This makes it difficult to take any enforcement action against any business with a Primary Authority agreement. But it doesn’t stop there.

If a local authority manages to get the officer to agree to a prosecution, Sainsbury’s can appeal that decision to the ‘Better Regulatory Development Office’ (BRDO), a quango with no direct Parliamentary accountability. The BRDO can veto a local authority’s decision to prosecute and the local authority has no right to appeal. Why would a business not use this mechanism if it’s available to them?

Also, for a local authority to try to prosecute any large business, they must be prepared to expose themselves to financial risk. Not every case is won and there is always the possibility of losing and having to pay not only the local authority’s costs but also the businesses. Big business have far more money than local authorities and the costs of taking a big business to court are off putting to most local authorities.

All of this means that big business is almost above the law and well protected against any form of enforcement action for regulatory failures, in the fields of local government enforcement – trading standards, food hygiene, health and safety. This is in stark contrast to the process for enforcing regulations on small local businesses.

The problems of enforcement with big business are likely to get worse rather than better with arrangements such as that at North Tyneside where Capita Symonds will be providing Environmental Health Services for the Council and so putting Big Business in the position of enforcing regulations on other big businesses.

The regulatory enforcement system is being systematically dismantled in such as way so that big business is protected from enforcement – this is wrong and puts big business beyond the reach of the law.

4 Comments

My beef (!!) has long been that Sony were not prosecuted under the Computer Misuse Act for installing (without permission) “rootkits” on the PCs of anyone who inserted certain Sony music CDs into their computer.

If an individual had done what they did to just a few computers, they’d have had the book thrown at them. Sony deliberately and knowingly infect thousands of computers and get away scot free. I suppose the DPP decided it wasn’t in the “public interest” to prosecute them……

What changes is the Author proposing? While there does seem to be a prima facie case for claiming possible conflict of interest, regulatory bodies are in a sense set up precisely to manage conflicts between different interests. Are there complaints procedures or standards of behaviour or agreed guidelines available if a business applies unfair pressure to Primary Authority officers? If not, would developing these be a way forward?

As I understand it from the website of the government’s Department for Business, Innovation and Skills, the BRDO looks like part of BIS, and so would be accountable to parliament through BIS and its Secretary, Vince Cable. The Primary Authority scheme evolved out of the previous Lead Authority scheme, and its aim is to simplify the regulations applied to businesses by ensuring that one set of regulations is applied consistently by all local authorities. This aim seems to be worthy of support.

My thanks to the author for bringing this to attention. I confess and had no idea and am shocked yet again by the craven kowtowing to big business that’s substituted for proper government in recent decades. This is something we need to expose and stop.

What the Primary Authority scheme does is provide a bit of extra protection for businesses.

Regulators often have different opinions on the law – so the idea is that if you have obtained legal advice from dept 1 and dept 2 wants to prosecute you – you should be able to rely on the fact you followed advice from dept 1.

If there is a dispute the BRDO will make the call – so they do become like a court but I spose you would have to hope where there is debate they would allow a prosecution to proceed so the court can decide.

I think there a a lot of other issues with the Primary Authority scheme but I wouldn’t say it prevent a prosecution where there is a good case.

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